ACTA, Executive Agreements, and the Bricker Amendment

byStephan KinsellaonOctober 16, 2011

For months now we’ve warned that the Anti-Counterfeiting Trade Agreement (ACTA) was on its way to being approved. This agreement is intended to strengthen international patent and copyright protection and to fight piracy and counterfeiting–for example, by imposing on other countries American DMCA-style provisions that prohibit technology that can be used to “circumvent” DRM technologies. As science fiction author Corey Doctorow observed, ACTA is a “radical rewriting of the world’s Internet laws taking place in secret without public input.”1

In any case, the US and several countries signed the agreement earlier this month.2 Also President Obama signed the agreement on behalf of the US, there are no plans to submit it to Congress for congressional approval.3 The Obama administration has long argued that the President has the authority to “implement” ACTA by “Executive Agreement” alone, and that Congress’s ratification is not needed, because ACTA is already fully consistent with current US law and would not require Congress to enact implementing legislation.

As others have pointed out, however, there are several problems with this argument. First,

Second, if ACTA gets the minimal six ratifications it needs, then it is a treaty that could bind the US under international law to have its municipal law (e.g. intellectual property and foreign trade) comply with ACTA’s terms. “This triggers the possibility of trade sanctions for non-compliance with ACTA, even though Congress never entered into the agreement.”

Further, it appears that ACTA is not completely consistent with US law anyway.4

We are seeing the danger here of the use by the President of “executive agreements” as a substitute for treaties, but in a way that binds the US under international law and that might even effectively amend the Constitution via the Supremacy Clause, which reads:

This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.

The treaty clause to the Constitution ostensibly requires the approval of a two thirds vote in the Senate, but executive agreements have been used as a way around this–to enter into commitments binding under international law–treaties–without getting Congressional approval. And because treaties are “the supreme law of the land,” the fear is that the President could in effect amend the Constitution by simply signing an executive agreement with terms contrary to other parts of the Constitution. This is one reason the Bricker Amendment was debated and almost passed in the 1950s.5 Too bad it failed.

The Center for the Study of Innovative Freedom (C4SIF) is dedicated to building public awareness of the manner in which laws and policies impede innovation, creativity, communication, learning, knowledge, emulation, and information sharing. We are for property rights, free markets, competition, commerce, cooperation, and the voluntary sharing of knowledge, and oppose laws that systematically impede or hamper innovation, especially those enforced in the name of defending “intellectual property,” such as patent and copyright; these should be radically reformed or entirely abolished.

We provide news commentary and analysis and scholarly resources from our unique pro-property, pro-market, pro-innovation perspective. The Center is the publisher of the online scholarly journal Libertarian Papers.